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BLACKMAN v. DISTRICT OF COLUMBIA

June 9, 2004.

MIKEISHA BLACKMAN, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., Defendants. JAMES JONES, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.



The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge

OPINION AND ORDER

On September 4, 2003, the parties in this litigation filed a proposed consent decree that they represented was a fair, reasonable and adequate resolution of these lawsuits. See Joint Motion for Preliminary Approval of Consent Decree at 1. The parties jointly requested that the Court issue an order granting preliminary approval of the proposed decree and schedule a fairness hearing. See id. This Opinion addresses the joint motion for preliminary approval of the proposed consent decree and several related matters, including the intervention of the District of Columbia Office of Administrative Hearings in the above-captioned Blackman matter. I. BACKGROUND

Prior to the filing of the parties' joint motion for preliminary approval of the proposed consent decree, the District of Columbia Office of Administrative Hearings ("OAH") moved for leave to intervene in these actions for the purpose of participating in the ongoing settlement discussions. The OAH asserted that as the newly-created central administrative tribunal for all District of Columbia agencies, it will assume responsibility for all special education hearings, and thus it has a right to take part in the formulation of a consent decree that concerns such hearings. See Motion of the District of Columbia Office of Administrative Hearings for Leave to Intervene ("OAH Mot.") at 1-2. Specifically, the OAH charged that the current draft of the consent decree, if adopted, "would divest OAH of the ability to manage and control its own docket independently, without interference from adversaries litigating within the special education system (the District of Columbia Public Schools (`DCPS'), special education petitioners and their respective counsel)," in violation of District of Columbia law. Id. at 2.

  In an Order dated June 2, 2003 addressing the OAH's motion, the Court noted that it did not understand why the OAH, like DCPS and all other District of Columbia agencies and entities, is not properly and adequately represented by the Office of the Corporation Counsel ("OCC") in the settlement negotiations, notwithstanding any authority of the OAH to retain its own counsel when it brings suit or is sued under D.C. Code § 1831.05(b)(10) (2002). In so noting, the Court stated that:
If OAH is in fact the new home for administrative due process hearings for special education, it necessarily will be affected by the parties' agreement, because any acceptable settlement must include specific time frames for the holding of the administrative due process hearings and due process hearing officer and/or administrative law judge decisions. While OAH asserts that the Corporation Counsel has not represented OAH's interests, such an assertion strikes the Court as being a matter for internal resolution within the District of Columbia government itself before any settlement proposal is presented to the Court — if necessary by the Mayor himself — not for this Court. Someone must speak for the District of Columbia government as a whole which is, after all, the named lead defendant in this class action.
Blackman v. District of Columbia, Civil Action No. 97-1629, Order at 2 (D.D.C. June 3, 2003) ("June 3 Order"). The Court ordered the OCC to file a response to the OAH's motion to intervene, setting forth "with precision the position of the Mayor, the District of Columbia government, the District of Columbia Public Schools, and the Office of the Corporation Counsel with respect to the proposed intervention in this matter by the District of Columbia Office of Administrative Hearings." Id.

  By separate filings, the OCC; the defendants in the case — the District of Columbia, DCPS, the Superintendent of DCPS and the Director of Special Education Services for DCPS; and the OAH advised the Court that they could not speak with a single voice. To the Court's amazement, the OCC stated that "it would not be appropriate for the OCC or any other office of the D.C. government, including the Mayor and the Corporation Counsel, to control or direct the OAH in the performance of its adjudicatory functions," and therefore that the OCC did not oppose the motion of the OAH to intervene. Response of the Office of the Corporation Counsel to Order of June 2, 2003, and to Motion to Intervene of Office of Administrative Hearings at 3-4. The OAH filed its own response in which it heralded its "independent authority to continue to schedule due process hearings in special education cases" and opposed "ceding control" over scheduling and holding timely due process hearings to DCPS. Response of the Office of Administrative Hearings to Plaintiffs' Surreply to Motion to Intervene at 5-6. As the Court noted in its August 22, 2003 Memorandum Opinion: "[M]ost of the pages of the briefs filed with respect to [the OAH's] motion to intervene discuss District of Columbia law and read like an internal fight between siblings. No party, however, has devoted much effort to discussing the law that actually governs this case . . . the [Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA")]." Blackman v. District of Columbia, Civil Action No. 97-1629, Memorandum Opinion and Order at 2 (D.D.C. Aug. 22, 2003) ("August 22 Opinion").

  In the August 22 Opinion, the Court directed the parties to brief the question of whether under the IDEA, only DCPS can fulfill its statutory obligation both to provide and to conduct the administrative due process hearings required by the IDEA, or whether that responsibility effectively may be transferred by the Council of the District of Columbia through legislation, or by any other authority, from DCPS to an independent District of Columbia agency such as the OAH. The Court asked the parties to survey the states in which such hearings are conducted by an agency other than the state or local educational agency as defined by the IDEA. To assist in its analysis of these issues, the Court appointed John Payton of the firm of Wilmer, Cutler & Pickering as amicus curiae to file "a true friend of court brief unaligned with any party or prospective party." The Court also directed the OAH to file a brief and invited the Office of the Corporation Counsel for the District of Columbia and the Council of the District of Columbia to submit briefs as well.*fn1 After considering all of the briefs filed with respect to the authority of the OAH to conduct hearings under the IDEA, as well as those filed in connection with the intervention motion, the Court granted the OAH's motion to intervene on March 29, 2004.

  Several pertinent events have occurred since briefing on these issues was completed. First, on November 4, 2003, District of Columbia Bill 15-571 was introduced in the Council of the District of Columbia. The bill's purpose is "to clarify that the [OAH] shall not have mandatory jurisdiction to hear District of Columbia Public Schools administrative cases, which jurisdiction threatens to impair the independence of the Office." Plaintiffs' Notice of Pending Legislation, Ex. 1, D.C. Bill 15-571 at 1. The proposed legislation would repeal those sections of the OAH statute that provide for mandatory jurisdiction over special education administrative hearings and for the transfer of a portion of the DCPS budget to the OAH. See id.

  Second, on December 2, 2003, the Council passed D.C. Bill 15-275, which was emergency legislation that removed special education hearings from the exclusive jurisdiction of the OAH for a period of 90 days, ending on March 17, 2004. See Office of Administrative Hearings' Notice Regarding D.C. Bill 15-571, D.C. Act 15-275 and D.C. Bill 15-560 [sic] at 1. Third, that same day the Council also passed a resolution that expressly referenced the Blackman litigation and stated the Council's intent to remove IDEA due process hearings from the mandatory jurisdiction of the OAH on a more permanent basis "in order to preserve the independence of the [OAH]" and to ensure that funds budgeted for special education administrative hearings remain in DCPS's budget. Id., Ex. 2, D.C. Resolution 15-356. Fourth, on January 6, 2004, the Council "passed on a second reading D.C. Bill 15-580," entitled "Office of Administrative Hearings Independence Preservation Temporary Act of 2003," which mirrors emergency D.C. Bill 15-275, and, if approved by the Mayor, would extend the effect of D.C. Bill 15-275 for 225 additional days from the date of enactment. See id. at 1-2. Neither D.C. Bill 15-571 nor D.C. Bill 15-580 has yet been enacted, however, leaving the OAH statute intact.

  II. DISCUSSION

  A. Permissible Role for the OAH

  In deciding to grant the motion of the OAH to intervene, the Court first concluded that the creation of a central hearings panel to conduct administrative hearings for a municipality, including the administrative due process hearings required by the IDEA, is permissible under the IDEA and, if properly constituted, such a centralized hearings panel can be consistent with the IDEA. Specifically, the plan creating the OAH, as embodied in the legislation passed by the Council of the District of Columbia to transfer its IDEA due process hearings from DCPS to the OAH is presumptively compliant with the IDEA. See Aiello v. Grasmick, 155 F.3d 557 (Table), Nos. 97-1389, 97-1400, 1999 WL 394175 at **9 (4th Cir. June 9, 1998); Cavanagh v. Grasmick, 75 F. Supp.2d 446, 459 (D. Md. 1999); Mr. X v. New York State Education Department, 975 F. Supp. 546, 553-54 (S.D.N.Y. 1997). See also Brief of Amicus Curiae John Payton Pursuant to the Court's August 22, 2003 Order ("Amicus Br.") at 37-40, and Attachment: "Survey Data about the Fourteen States that Use Central Hearings Panels to Conduct IDEA Hearings" (detailing state and municipal use of central hearing panels to conduct IDEA due process hearings).

  Notwithstanding this conclusion that the OAH may have the authority to conduct due process hearings for DCPS during some or all of the time period covered by the consent decree (depending on the ultimate fate of D.C. Bill 15-571 and D.C. Bill 15-580), the Court also concluded that DCPS ultimately is the responsible entity under the IDEA for the implementation of the IDEA, for compliance with its 45-day hearing and decision requirement, and for the procedural fairness of any due process hearings conducted. See 20 U.S.C. § 1412(a)(11)(A), 1415(a)-(h); 34 C.F.R. § 300.509, 300.511; Mr. X v. New York State Education Department, 975 F. Supp. at 553-54 (New York State Education Department ("SED") still responsible for and subject to liability for determinations of independent State Review Officer ("SRO") because SRO decisions are made on behalf of SED); see also Petties v. District of Columbia, 894 F. Supp. 465, 466-67 (D.D.C. 1995). As the court stated in Mr. X, "[t]he parent does not stop being aggrieved by the final decision," or by the failure to issue a final decision, merely because a central hearings authority rather than a state education agency hearing officer now will render that decision. Mr. X v. New York State Education Department, 975 F. Supp. at 553 (internal quotations omitted).

  While D.C. Bill 15-571 eventually may resolve any questions regarding the OAH's mandatory involvement in IDEA administrative due process hearings, and D.C. Bill 15-580 affirmatively may remove IDEA due process hearings from the OAH's jurisdiction for a seven and one-half month period, neither piece of legislation has been enacted, and the Court cannot make a decision about the OAH's intervention based on a contingency. Moreover, no party was prepared to assure the Court that notwithstanding any legislation that might be enacted (or lack thereof), a single entity, either DCPS or OAH, would be the responsible for IDEA administrative due process hearings for the entire life of the consent decree if it were approved. The Court therefore concluded that both DCPS and the OAH must be defendants in this case and both must be signatories to any consent decree that effectuates the settlement of Blackman v. District of Columbia, Civil Action No. 97-1629.*fn2

  The Court cautions the OAH that if at some point the OAH does conduct administrative due process hearings under the IDEA either because it is required to do so or is permitted to do so by local law, it will be bound by all provisions of the IDEA with respect to the procedural requirements for such due process hearings and all other relevant terms of the IDEA, specifically and most importantly including the requirement that all hearings must be conducted and all decisions must be rendered within 45 days of a request for an administrative due process hearing under the IDEA. See, e.g., 34 C.F.R. § 300.511(a); Walker v. District of Columbia, 157 F. Supp.2d 11, 30 (D.D.C. 2001); D.C. MUN. REGS. tit. 5, § 3030.1. Furthermore, the OAH will be bound by all earlier and subsequent decisions rendered in the Blackman case — including the deadlines for the provision of hearings previously decreed — just as all original defendants in the case are bound. See Schneider v. Dumbarton Developers, Inc., 767 F.2d 1007, 1017 (D.C. Cir. 1985) ("When a party intervenes, it becomes a full participant in the lawsuit and is treated just as if it were an original party"); District of Columbia v. Merit Systems Protection Board, 762 F.2d 129, 132 (D.C. Cir. 1985) ("the `price' of [such] intervention . . . is the possibility that the plaintiff will be able to obtain relief against the intervenor-defendant"); Securities Industry Association v. Board of Governors of the Federal Reserve System, 628 ...


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